USON v. DEL ROSARIO GR No.L-4963, January 29, 1953 92 PHIL 530- FACTS: Faustino Nebreda died in 1945 leaving as an only

heir his estranged wife Maria Uson, the petitioner. The latter sued to recover the ownership and possession of five parcels of land occupied by defendant Maria del Rosario, decedent's common-law-spouse and her children. As a defense, defendant presented a deed of separation agreed upon and signed Faustino and Uson containing among others an statement giving a parcel of land to Uson as an alimony and the latter renouncing her rights to any inheritance from Faustino.

- The defendant also contends that while it is true that the four minor defendants are illegitimate children of the decedent and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code).

-- ISSUE: Are the contentions of the defendants correct?-- HELD: No. It is evident that when the decedent died in

1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested.

- The claim of the defendants that Uson had relinquished her right over the lands in question in view of her expressed renunciation to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced.

- Nor does the contention that the provisions of the New Civil Code shall apply and be given retroactive effect. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin... As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

Borja v. Borja 46 SCRA 577- FACTS:- Francisco de Borja filed a petition for probate of the will of

his wife who died, Josefa Tangco, with the CFI of Rizal. He was appointed executor and administrator, until he died; his son Jose became the sole administrator. Francisco had taken a 2nd wife Tasiana before he died; she instituted testate proceedings with the CFI of Nueva Ecija upon his death and was appointed special administatrix. Jose and Tasiana entered upon a compromise agreement, but Tasiana opposed the approval of the compromise agreement. She argues that it was no valid, because the heirs cannot enter into such kind of agreement without first probating the will of Francisco, and at the time the

agreement was made, the will was still being probated with the CFI of Nueva Ecija.

- ISSUE:- W/N the compromise agreement is valid, even if the will of

Francisco has not yet been probated.- HELD:- YES, the compromise agreement is valid.- The agreement stipulated that Tasiana will receive

P800,000 as full payment for her hereditary share in the estate of Francisco and Josefa.

- There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee.

- And as a hereditary share in a decedent’s estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate.

Bonilla v. Barcena, 71 SCRA 491- FACTS: On March 31, 1975 Fortunata Barcena, mother of

minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the CFI of Abra, to quiet title over certain parcels of land located in Abra.

-- The defendants filed a motion to dismiss the complaint on

the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. In the hearing for the motion to dismiss, counsel for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.

-- ISSUE: W/N the CFI erred in dismissing the complaint.-- HELD: While it is true that a person who is dead cannot sue

in court, yet he can be substituted by his heirs in pursuing the case up to its completion.

-- The records of this case show that the death of Fortunata

Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her person.

-- Under Section 16, Rule 3 of the Rules of Court “whenever

a party to a pending case dies … it shall be the duty of his attorney to inform the court promptly of such death … and to give the name and residence of his executor, administrator, guardian or other legal representatives.” This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of parties in the case.

-- The respondent Court, however, instead of allowing the

substitution, dismissed the complaint on the ground that a dead person has no legal personality to sue.

-- This is a grave error. Article 777 of the Civil Code provides

“that the rights to the succession are transmitted from the moment of the death of the decedent.”

-- From the moment of the death of the decedent, the heirs

become the absolute owners of his property, subject to

the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings.

-- When Fortunata Barcena, therefore, died, her claim or

right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.

-- The claim of the deceased plaintiff which is an action to

quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore is one that survives even after her death.

-- It is, therefore, the duty of the respondent Court to order

the legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint.

-- This should not have been done for under Section 17, Rule

3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased.

-- Unquestionably, the respondent Court has gravely abused

its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of parties in the case.

Jimenez v. FernandezParas, J. (1990)PET: Sulpicia Jimenez et al.RESPs: Vicente Fernandez, Teodora GradoFacts:

- Land in question (2, 932 sqm) formerly belonged to Fermin Jimenez.•Fermin Jimenez had 2 sons: Carlos and Fortunato. Fortunato predeceased Fermin leaving behind a daughter, Sulpicia.•After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso.•Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square meters.•Melecia Jimenez sold said 436 square meter-portion of the property to EdilbertoCagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real Properties" whereby the former transferred said 436 square meter-portion tothe latter, who has been in occupation since.•August 1969 -- PET executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she isthe only heir of her deceased uncle. A TCT was then issued in petitioner's namealone over the entire 2,932 square meter property.•PET, joined by her husband, instituted the present action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by defendant Teodora Grado and her son.•Lower court: Dismissed the complaint.•CA: Affirmed lower court

- .Issue:1.WON Melecia Cayabyab had any right over the eastern part of the propertyshe took possession of and later sold? No. (See Ratio 1 & 2)2.WON Melecia Cayabyab had acquired any right over the said part of the property through prescription? No. (Ratio 3)3.WON PET is barred

from recovering the parcel of land through laches? No.(Ratio 4)Ratio:1.From the start the respondent court erred in not declaring that MeleciaJimenez Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Respondents failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez.2.(RELEVANT) Assuming that Melecia Cayabyab was the illegitimate daughterof Carlos Jimenez there can be no question that Melecia Cayabyab had no right tosucceed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property subjectof this petition.oArt. 777 of the CC: The rights to the succession are transmitted from the moment of the death of the decedentoArt. 2263 of the CC: Rights to the inheritance of a person who died withor without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of CourtoSince Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of died on July 9, 1936 way before the effectivity of the Civil Code of thePhilippines, the successional rights pertaining to his estate must be determinedin accordance with the Civil Code of 1889.oTo be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos Jimenez died and which should be the governing law in so faras the right to inherit from his estate was concerned), a child must be eithera child legitimate, legitimated, or adopted, or else an acknowledged natural chi

- ld — for illegitimate not natural are disqualified to

inherit.oMelecia Cayabcab could not even be considered an acknowledged natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to any successional rights in sofar as the estate of Carlos Jimenez was concerned.3.No possession by any person of any portion of the land covered by said original certificate of titles, could defeat the title of the registered owner ofthe land covered by the certificate of title. Sulpicia's title over her one-half undivided property remained good and continued to be good when she segregatedit into a new titlein 1969. Sulpicia's ownership over her one-half of the land and which is the land in dispute was always covered by a Torrens title, and therefore, no amount of possession thereof by the respondents, could ever defeat herproprietary rights thereon.4.It is apparent, that the right of PET to institute this action to recover possession of the portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 and the Court has invariably in past casesupheld that "the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under the doctrine of laches.Dispositive: Petition Granted

Quison Vs. Salud-

De vera vs. Galauran- Arsenio de Vera, as surviving spouse of the deceased

Isabel Domingo, acting for himself and as guardian ad litem of six minors heirs, instituted an action against Cleotilde Galauran in the Court of First Instance of Rizal for the annulment of a deed of sale of a registered parcel of land. It is alleged in the complaint that Arsenio de Vera and his wife Isabel Domingo, now deceased, have mortgaged their property to the defendant to secure a loan received from him, but said defendant illegally made them sign a deed which they then believed to be of mortgage and which turned out later to be of pacto de retro sale; and that the six minor children named in the complaint are the legitimate children and legitimate heirs of the deceased Isabel Domingo. A demurrer was interposed by the defendant alleging that the plaintiffs have no cause of action, for they have not been declared

legal heirs in a special proceeding. The demurrer was sustained, and, on failure of plaintiffs to amend, the action was dismissed. Wherefore, this appeal.

-- Unless there is pending a special proceeding for the

settlement of the estate of a deceased person, the legal heirs may commence an ordinary action arising out of a right belonging to the ancestor, without the necessity of a previous and separate judicial declaration of their status as such. (Rosa Hernandez vs. Padua, 14 Phil., 194; Mendoza Vda. de Bonnevie vs. Cecilio Vda. de Pardo, 59 Phil., 486; Government of the Philippine Islands vs. Serafica, 33 Off. Gaz., 334; Uy Coque vs. Navas L. Sioca, 45 Phil., 430.) If the deceased turns out to have debts, the creditors or the heirs themselves may initiate a special proceeding. If the heirs are minors, a guardian ad litem may be appointed for them. (Secs. 116 and 117, Act No. 190.)

-- In the complaint it is asked that a guardian ad litem be

appointed for the minor plaintiffs. The lower court should have granted this petition instead of sustaining the demurrer and dismissing the action.

-- The order of dismissal is hereby reversed and the case

remanded to the lower court for further proceedings, with costs against defendant-appellee.

Torres vs. Lopez

Suroza vs. Honrado- In 1973, Marcelina Suroza supposedly executed a notarial

will bequeathing her house and lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix in the said will and she petitioned before CFI Rizal that the will be admitted to probate. The presiding judge, Honrado admitted the will to probate and assigned Paje as the administratrix. Honrado also issued an ejectment order against the occupants of the house and lot subject of the will.

-- Nenita Suroza, daughter in law of Marcelina (her husband,

son of Marcelina was confined in the Veteran’s Hospital), learned of the probate proceeding when she received the ejectment order (as she was residing in said house and lot).

-- Nenita opposed the probate proceeding. She alleged that

the said notarial will is void because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the compulsory heir, (c) the notarial will is written in English a language not known to Marcelina because the latter was illiterate so much so that she merely thumbmarked the will, (d) the notary public who notarized will admitted that Marcelina never appeared before him and that he notarized the said will merely to accommodate the request of a lawyer friend but with the understanding that Marcelina should later appear before him but that never happened.

-- Honrado still continued with the probate despite the

opposition until testamentary proceeding closed and the property transferred to Marilyn Sy.

-- Nenita then filed this administrative case against Honrado

on the ground of misconduct.-- ISSUE: Whether or not Honrado is guilty of misconduct for

admitting into probate a void will.-- HELD: Yes. Despite the valid claim raised by Nenita, he still

continued with the testamentary proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly rendering an unjust judgment or interlocutory order or rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance.

-

- The will is written in English and was thumb marked by an obviously illiterate Marcelina. This could have readily been perceived by Honrado that that the will is void. In the opening paragraph of the will, it was stated that English was a language “understood and known” to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix “and translated into Filipino language.” That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of Article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Had Honrado been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to Agapito who was still alive.

-- Honrado was fined by the Supreme Court.

Matias vs. Salud- Facts: - 1. This case is an appeal from a CFI Cavite order denying

the probate of the will of Gabina Raquel. The document consist of 3 pages and it seems that after the attestation clause, there appears the siganture of the testatrix 'Gabina Raquel', alongside is a smudged in violet ink claimed by the proponents as the thumbmark allegedly affixed by the tetratrix. On the third page at the end of the attestation clause appears signatures on the left margin of each page, and also on the upper part of each left margin appears the same violet ink smudge accompanied by the written words 'Gabina Raquel' with 'by Lourdes Samonte' underneath it.

-- 2. The proponent's evidence is to the effect that the

decedent allegedly instructed Atty. Agbunag to drat her will and brought to her on January 1950. With all the witnesses with her and the lawyer, the decedent affixed her thumbmark at the foot of the document and the left margin of each page. It was also alleged that she attempted to sign using a sign pen but was only able to do so on the lower half of page 2 due to the pain in her right shoulder. The lawyer, seeing Gabina unable to proceed instructed Lourdes Samonte to write 'Gabina Raquel by Lourdes Samonte' next to each thumbmark, after which the witnesses signed at the foot of the attestation clause and the left hand margin of each page.

-- 3. The probate was opposed by Basilia Salud, the niece of

the decedent.-- 4. The CFI of cavite denied the probate on the ground that

the attestation clause did not state that the testatrix and the witnesses signed each and every page nor did it express that Lourdes was specially directed to sign after the testatrix.

-- Issue: Whether or not the thumbprint was sufficient

compliance with the law despite the absence of a description of such in the attestation clause

-- HELD: YES- The absence of the description on the attestation clause

that another person wrote the testatrix' name at her request is not a fatal defect, The legal requirement only ask that it be signed by the testator, a requirement satisfied by a thumbprint or other mark affixed by him.

-- As to the issue on the clarity of the ridge impression, it is

held to be dependent on the aleatory circumstances. Where a testator employs an unfamiliar way of signing and that both the attestation clause and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the testament. However, the failure to describe the signature itself alone is not sufficient to refuse probate when evidence fully satisfied that the will was executed and witnessed in accordance with law.

Barut vs. Cabacungan- Facts: 1.Pedro Barut applied for the probate of the will of

Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedent's property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Severino Agapan, one of the witnesses to sign her name in her behalf.

- 2. The lower court ruled that the will is not entitled to probate on the sole ground that the handwriting of the person who signed the name of the testatrix does not appear to be that of Agapan but that of another witness.

- Issue: Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign his name

- HELD: No, it is immaterial who wrote the name of the testator provided it is written at her request and in her present, and in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time.

Balonan vs Abellana- Anacleta Abellana left a will. In said will, she let a certain

Juan Bello sign the will for her. The will consists of two pages. The first page is signed by Juan Abello and under his name appears typewritten “Por la testadora Anacleta Abellana”. On the second page, appears the signature of Juan Bello under whose name appears the phrase, “Por la Testadora Anacleta Abellana” – this time, the phrase is handwritten.

-- ISSUE: Whether or not the signature of Bello appearing

above the typewritten phrase “Por la testadora Anacleta Abellana” comply with the requirements of the law prescribing the manner in which a will shall be executed.

-- HELD: No. Article 805 of the Civil Code provides that:-- “Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.”

-- In the case at bar the name of the testatrix, Anacleta

Abellana, does not appear written under the will by said Abellana herself, or by Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

-- Note that the phrase “Por la testadora Anacleta Abellana”

was typewritten and above it was the signature of Abello – so in effect, when Abello only signed his name without writing that he is doing so for Anacleta, he actually omitted the name of the testatrix. This is a substantial violation of the law and would render the will invalid.

-Nera vs. Remando

- When a certain will was being signed, it was alleged that the testator and some subscribing witnesses were in the inner room while the other subscribing witnesses were in the outer room. What separates the inner room from the outer room was a curtain. The trial court ignored this fact in its determination of the case as it ruled that the determination of this specific fact will not affect the outcome of the case.

-- ISSUE: What is the true test of the testator’s or the

witness’ presence in the signing of a will?-- HELD: The Supreme Court emphasized that the true test of

presence of the testator and the witnesses in the

execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.

-- The position of the parties with relation to each other at

the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so.

-- The Supreme Court, in this case, determined that all the

parties were in the same small room when each other signed. Hence, they were in each other’s presence (though the facts of the case didn’t elaborate – the SC just ruled so). The SC ruled that if some of the witnesses were really in the outer room (a fact which was not established according to the SC) separated by a curtain, then the will is invalid, the attaching of those signatures under circumstances not being done “in the presence” of the witness in the outer room.

Tabuada vs. Rosal- Dorotea Perez left a will. The will has two pages. On the

first page, which contains the entire testamentary dispositions, were the signatures of the three instrumental witnesses and that of Dorotea Perez. The signatures of the three instrumental witnesses were on the left margin while Perez’ signature was on the bottom. On the second page, which contains the attestation clause and the acknowledgement, were the signatures of the three attesting witnesses and that of Dorotea Perez. The attestation clause failed to state the number of pages used in the will. Taboada petitioned for the admission to probate of the said will. The judge who handled the petition was Judge Ramon Pamatian. He denied the petition. Taboada filed a motion for reconsideration but Pamatian was not able to act on it because he was transferred to another jurisdiction. The case was inherited by Judge Rosal who also denied the MFR on the grounds that a) that the testator and the instrumental witnesses did not all sign on the left margin of the page as prescribed by law; that the testator and the witnesses should have placed their signature in the same place b) that the attestation clause failed to state the number of pages used in writing the will – this, according to Judge Rosal violated the requirement that the attestation clause shall state the number of pages or sheets upon which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed.

-- ISSUE: Whether or not the will should be admitted to

probate.-- HELD: Yes. The law must be interpreted liberally.-- Further, there is substantial compliance with the law. It

would be absurd that the legislature intended to place so heavy an import on the space or particular location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith.

-- The failure to include in the attestation clause of the

number of pages used in writing the will would have been a fatal defect. But then again, the matter should be approached liberally. There were only two pages in the will left by Perez. The first page contains the entirety of the testamentary dispositions and signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as “Pagina dos” comprises the attestation clause and the acknowledgment. Further, the acknowledgment itself states that “This Last Will and Testament consists of two pages including this page.”

Icasiano vs. Icasiano- Facts: 1. Celso Icasiano, filed a petition for the probate of

the will of Josefa Villacorte and for his appointment as executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original and a carbon copy.

- 2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in his presence.

- Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is sufficient to deny probate of the will

- RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence. Since the duplicated bore the required signatures, this proves that the omission was not intentional. Even if the original is in existence, a duplicate may still be admitted to probate since the original is deemed to be defective, then in law, there is no other will bu the duly signed carbon duplicate and the same can be probated. The law should not be strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she has no control of. Where the purpose of the law is to guarantee the identity of the testament and its component pages, and there is no intentional or deliberate deviation existed. Note that this ruling should not be taken as a departure from the rules that the will should be signed by the witnesses on every page. The carbon copy duplicate was regular in all respects.

Abangan vs. Abangan- Facts:- 1. On September 1917, the CFI of Cebu admitted to

probate Ana Abangan's will executed on July 1916. It is from this decision which the opponent appealed. It is alleged that the records do not show the testatrix knew the dialect in which the will was written.

-- Issue: Whether or not the will was validly probated-- YES. The circumstance appearing on the will itself, that it

was executed in Cebu City and in the dialect of the place where the testarix is a resident is enough to presume that she knew this dialect in the absence of any proof to the contrary. On the authority of this case and that of Gonzales v Laurel, it seems that for the presumption to apply, the following must appear: 1) that the will must be in a language or dialect generally spoken in the place of execution, and, 2) that the testator must be a native or resident of the said locality

Cruz vs. Villasor- Facts:- 1. The CFI of Cebu allowed the probate of the last will and

testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law.

-- 2. One of the witnesses, Angel Tevel Jr. was also the notary

before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.

-- Issue: Whether or not the will is valid in accordance with

Art. 805 and 806 of the NCC

-- HELD: NO.- The will is not valid. The notary public cannot be

considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.

-- To acknowledge before means to avow, or to own as

genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.

-- Finally, the function of a notary among others is to guard

against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Gabucan vs Manta- FACTS:-- This case is about the dismissal of a petition for the

probate of the notarial will of the late Rogaciano Gabucan on the ground that it does not bear a thirty-centavo documentary stamp. The probate court refused to reconsider the dismissal in spite of petitioner’s manifestation that he had already attached the documentary stamp to the original of the will.

-- ISSUE:-- W/N the probate correct was correct in dismissing the

petition on the ground of failure to affix the documentary stamp to the will

-- HELD:-- The Court held that the lower court manifestly erred in

declaring that, because no documentary stamp was affixed to the will, there was “no will and testament to probate” and, consequently, the alleged “action must of necessity be dismissed.”

-- What the probate court should have done was to require

the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. The documentary stamp may be affixed at the time the taxable document is presented in evidence.

Abellana vs Ledesma-

Garcia vs. Vasquez- Facts:- 1. Gliceria del Rosario executed 2 wills, one in June 1956,

written in Spanish, a language she knew an spoke. The other will was executed in December 1960 consisting of only one page, and written in Tagalog. The witnesses to the 1960 will declared that the will was first read 'silently' by the testatrix before signing it. The probate court admitted the will.

-- 2. The oppositors alleged that the as of December 1960,

the eyesight of the deceased was so poor and defective that she could not have read the provisions contrary to the testimony of the witnesses.

-- Issue: Whether or not the will is valid-- RULING: The will is not valid. If the testator is blind, Art.

808 of the New Civil Code (NCC) should apply.If the testator is blind or incapable of reading, he must be

apprised of the contents of the will for him to be able to have the opportunityto object if the provisions therein are not in accordance with his wishes.

-- The testimony of her opthalmologist established that

notwithstanding an operation to remove her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained mainly for viewing distant objects and not for reading. There was no evidence that her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her own will. The admission of the will to probate is therefor erroneous.

Acain vs. LAC- FACTS:- Constantitno filed for probate of the will of his decased

brother Nemesio. The spouse and adopted child of the decedentopposed the probate of will because of preterition. RTC dismissed the petition of the wife. CA reversed and the probatethus was dismissed

- ISSUE:- Whether or not there was preterition of “compulsory heirs

in the direct line” thus their omission shall not annul the- institution of heirs- .RULING:- Preterition consists in the omission of the forced heirs

because they are not mentioned there in, or trough mentioned theyare neither instituted as heirs nor are expressly disinherited. As for the widow there is no preterit ion because she is not inthe direct line. However, the same cannot be said for the adopted child whose legal adoption has not been questioned bythe petitioner. Adoption gives to the adopted person the same rights and duties as if he where a legitimate child of theadopter and makes the adopted person a legal heir hence, this is a clear case of preterition.The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator resultsin totally abrogating the will because the nullification of such institution of universal heirs without any other testamentarydisposition in the will amounts to a declaration that nothing was written. No legacies and devisees having been provided inthe will, the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters.

Cagro vs. Cagro

Dela Cerna vs. Potot- Facts:- 1. The spouses Bernabe Dela Serna and Gerasisa Rebabca

executed a joint will where they gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their own child. When Bernabe died, the said will was probated in 1939.

-- 2. Another petition for probate of the same will insofar as

Gervasia was concerned was filed in 1952 but due to the failure of the petitioner (Manuela) to appears, the same was dismissed in 1954.

-- 3. The CFI held the petition (Bernabe probate) to be null

and void as it is contrary to law. While the Court of Appeals reversed and held that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive as to the due execution of the will. Hence this appeal.

-- Issue: Whether or not the will is valid-- RULING: The Supreme Court affirmed the CA decision and

held that Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata. THe final decree of probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of Bernabe despite the fact that even then the Civil Code already decreed the invalidity of joint wills. (There was an error on the court but the decree has now become final.)

-- The probate court committed an error of law which should

have been corrected on appeals but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision. A decision which is binding upon the whole world.

-- Nevertheless, the probate in 1939 only affected the share

of Bernabe and could not include the disposition of the share of his wife which was still alive then, her properties were still not within the jurisdiction of the court. Hence, the validity of the will with respect to her, must be on her death, be re-examined and adjudicated de novo -- since a joint will is considered a separate will of each testator.

Diaz vs. De Leon - Facts:- 1. Jesus de Leon executed 2 wills, the second will was not

deemed in conformance to the requirements under the law. After executing his first will, he asked it to be immediately returned to him. As it was returned, he instructed his servant to tear it. This was done in the testator's presence and his nurse. After sometime, he was asked by his physician about the incident wherein he replied that the will has already been destroyed.

-- Issue: Whether or not there was a valid revocation of the

will-- RULING: Yes. His intention to revoke is manifest from the

facts that he was anxious to withdraw or change the provisions he made in the first will. This fact was shown from his own statements to the witnesses and the mother superior of the hospital where he was subsequently confined. The original will which was presented for probate is deemed destroyed hence, it cannot be probated as the last will and testament of testator.

Tampoy vs. Alberastine-

Gago vs. Manuya- Facts: - 1. Previously, Francisco Gago filed a petition for the

probate of a will of Miguel Mamuyac executed on July 27, 1918. The oppositors alleged that the said will was already annulled and revoked. It appeared that on April 16, 1919, the deceased executed another will. The lower court denied the probate of the first will on the ground of the existence of the second will.

-- 2. Another petition was filed to seek the probate of the

second will. The oppositors alleged that the second will presented was merely a copy. According to the witnesses, the said will was allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses who typed the document. Another witness testified that on December 1920 the original will was actually cancelled by the testator.

-- 3. The lower court denied the probate and held that the

same has been annulled and revoked.-- Issue: Whether or not there was a valid revocation of the

will-- RULING: Yes. The will was already cancelled in 1920. This

was inferred when after due search, the original will cannot be found. When the will which cannot be found in shown to be in the possession of the testator when last seen, the presumption is that in the absence of other competent evidence, the same was deemed cancelled or destroyed. The same presumption applies when it is shown that the testator has ready access to the will and it can no longer be found after his death.

Gan vs. Yap- FACTS- On November 20, 1951, Felicidad Esguerra Alto Yap died of

heart failure in the University of SantoTomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

- - On March 17, 1952, Fausto E. Gan initiated these

proceedings in the Manila court of first instance with apetition for the probate of a holographic will allegedly executed by the deceased.Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left anywill, nor executed any testament during her lifetime.After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, refused toprobate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.

- ISSUE- WON a holographic will be probated upon the testimony

of witnesses who have allegedly seen it andwho declare that it was in the handwriting of the testator?

- HELD- NO. The court ruled that the execution and the contents

of a lost or destroyed holographic will may notbe proved by the bare testimony of witnesses who have seen and/or read such will. The loss of theholographic will entails the loss of the only medium of proof. Even if oral testimony were admissible toestablish and probate a lost holographic will, we think the evidence submitted by herein petitioner is sotainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"proof required by Rule 77, sec. 6. 11.

Jimenez vs. Fernandez- Facts:- Land in question (2, 932 sqm) formerly belonged to Fermin

Jimenez.- Fermin Jimenez had 2 sons: Carlos and Fortunato.

Fortunato predeceased Fermin leaving behind a daughter, Sulpicia.

- After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso.

- Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square meters.

- Melecia Jimenez sold said 436 square meter-portion of the property to EdilbertoCagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real Properties" whereby the former transferred said 436 square meter-portion tothe latter, who has been in occupation since.

- August 1969 -- PET executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she isthe only heir of her deceased uncle. A TCT was then issued in petitioner's namealone over the entire 2,932 square meter property.

- PET, joined by her husband, instituted the present action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by defendant Teodora Grado and her son.

- Lower court: Dismissed the complaint.- CA: Affirmed lower court.- Issue:- 1.WON Melecia Cayabyab had any right over the eastern

part of the propertyshe took possession of and later sold? No. (See Ratio 1 & 2)

- 2.WON Melecia Cayabyab had acquired any right over the said part of the property through prescription? No. (Ratio 3)

- 3.WON PET is barred from recovering the parcel of land through laches? No.(Ratio 4)

- Ratio:1.From the start the respondent court erred in not declaring that MeleciaJimenez Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and

therefore, had no right over the property in question. Respondents failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez.

- 2.(RELEVANT) Assuming that Melecia Cayabyab was the illegitimate daughterof Carlos Jimenez there can be no question that Melecia Cayabyab had no right tosucceed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property subjectof this petition.oArt. 777 of the CC: The rights to the succession are transmitted from the moment of the death of the decedentoArt. 2263 of the CC: Rights to the inheritance of a person who died withor without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of CourtoSince Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of died on July 9, 1936 way before the effectivity of the Civil Code of thePhilippines, the successional rights pertaining to his estate must be determinedin accordance with the Civil Code of 1889.oTo be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos Jimenez died and which should be the governing law in so faras the right to inherit from his estate was concerned), a child must be eithera child legitimate, legitimated, or adopted, or else an acknowledged natural chi

- - ld — for illegitimate not natural are disqualified to

inherit.oMelecia Cayabcab could not even be considered an acknowledged natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to any successional rights in sofar as the estate of Carlos Jimenez was concerned.

- 3.No possession by any person of any portion of the land covered by said original certificate of titles, could defeat the title of the registered owner ofthe land covered by the certificate of title. Sulpicia's title over her one-half undivided property remained good and continued to be good when she segregatedit into a new titlein 1969. Sulpicia's ownership over her one-half of the land and which is the land in dispute was always covered by a Torrens title, and therefore, no amount of possession thereof by the respondents, could ever defeat herproprietary rights thereon.

- 4.It is apparent, that the right of PET to institute this action to recover possession of the portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 and the Court has invariably in past casesupheld that "the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under the doctrine of laches.Dispositive: Petition Granted.

Labrador vs. CA-

Maloto vs. CA- Facts: - 1. Petitioners and respondents are the neices/nephews or

Adriana Maloto who died in 1963. The four heirs believed that the deceased did not leave a will, hesnce they filed an intestate proceeding. However, the parties executed an extrajudicial settlement of the estate dividing it into four equal parts.

-- 2. In 1967, Atty. Sulpicio Palma, ex-associate of the

deceased's counsel allegedly discovered her last will which was purportedly dated 1940, inside a cabinet. Hence the annulment of the proceedings and a probate petition was filed by the devisees and legatees. The said will was allegedly burned by the househelp under the instruction of the deceased

-- 3. The lower court denied the probate on the ground that

the animus revocandi in the burning of the will was sufficiently proven.

-- Issue: Whether or not there was valid revocation of the

will-- RULING: No, there was no revocation. For a valid

revocation to occur,the 'corpus' and 'animus' must concur, one without the other will not produce a valid revocation. The physical act of destruction of a will must come with an intention to revoke (animus revocandi). In this case, there's paucity of evidence to comply with the said requirement. The paper burned was not established to be the will and the burning though done under her express direction was not done in her presence.

-- Under Art. 830, the physical act of destruction, in this case

the burning of the will, does not constitute an effective revocation, unless it is coupled with animus revocandi on the part of the testator. Since animus is a state of mind, it has to be accompanied by an overt physical act of burning, tearing, obliterating or cancelling done by the testator himself or by another under his express direction and presence.

Matias vs. Gonzales

Nera vs. Rimando- Facts:- 1. At the time the will was executed, in a large room

connecting with a smaller room by a doorway where a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument.

-- 2. The trial court did not consider the determination of the

issue as to the position of the witness as of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will.

-- 3. The CA deemed the will valid.-- Issue: Whether or not the subscribing witness was able to

see the testator and other witnesses in the act of affixing their signatures.

-- HELD: YES- The Court is unanimous in its opinion that had the

witnesses been proven to be in the outer room when the testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms.

-- The position of the parties must be such that with relation

to each other at the moment of the attaching the signatures, they may see each other sign if they chose to.

-- In the Jaboneta case, the true test of presence is not

whether or not they actualy saw each other sign but whether they might have seen each other sign if they chose to doso considering their physical, mental condition and position in relation to each other at the moment of the inscription of the signature.

Bueno vs. Lopez-

De molo vs. Molo- Facts:- 1. Marcos Molo executed 2 wills, one in August 1918 and

another in June 1939. The latter will contained a revocation clause which expressly revoked the will in 1918. He died without any forced heirs but he was survived by

his wife, herein petitioner Juana. The oppositors to the probate were his nephews and nieces.

-- 2. Only a carbon copy of the second will was found. The

widow filed a petition for the probate of the 1939 will. It was admitted to probate but subsequently set aside on ground that the petitioner failed to prove its due execution.

-- 3. As a result, the petitioner filed another petition for the

probate of the 1918 will this time. Again the oppositors alleged that said will had already been revoked under the 1939 will. They contended that despite the disallowance of the 1939 will, the revocation clause is valid and thus effectively nullified the 1918 will.

-- Issue: Whether or not the 1918 will can still be valid

despite the revocation in the subsequent disallowed 1939 will

-- RULING: Yes.The court applied the doctrine laid down in

Samson v. Naval that a subsequent will,containing a clause revoking a previous will, having been disallowed for the reason that it was not executed in accordance with law cannot produce the effect of annulling the previous will, inasmuch as the said revocatory clause is void.

-- There was no valid revocation in this case. No evidence

was shown that the testator deliberately destroyed the original 1918 will because of his knowledge of the revocatory clause contained in the will executed in 1939.The earlier will can still be probated under the principle of dependent relative revocation.The doctrine applies when a testator cancels or destroys a will or executes an instrument intended to revoke a will with the intention to make a new testamentary disposition as substitute for the old, and the new disposition fails of effect for some reason.